U.S. v. Cheromiah
| Decision Date | 02 August 2006 |
| Docket Number | No. 05-2168.,05-2168. |
| Citation | 455 F.3d 1216 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nina Lynn CHEROMIAH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael W. Lilley (Jess R. Lilley on the brief), Lilley Law Offices, Las Cruces, NM for the Defendant-Appellant.
Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, NM, for the Plaintiff-Appellee.
Before LUCERO, EBEL, and MURPHY, Circuit Judges.
Nina Cheromiah pled guilty to conspiring to possess with the intent to distribute 50 kilograms or more of marijuana. Cheromiah was a passenger in a van stopped by a Border Patrol agent near the Mexico-New Mexico border on a road known to be used by smugglers to avoid immigration checkpoints. While the Border Patrol agent determined that the van's passengers were United States citizens, he also detected the odor of dryer sheets, a product sometimes used to mask the odors of drugs. After a consensual search, the agent discovered nearly 120 pounds of marijuana. In pleading guilty, Cheromiah reserved her right to appeal the district court's denial of her motion to suppress the evidence obtained as a result of the stop and continued detention of the van. Because we conclude that under the totality of the circumstances the Border Patrol agent had reasonable suspicion both to stop the van and to detain its occupants pending the search of the vehicle, we AFFIRM.
On the evening of April 7, 2004, United States Border Patrol Agent Christopher Dooley was on roving patrol on Interstate 25 near Hatch, New Mexico, in an unmarked Border Patrol vehicle. He parked his vehicle on New Mexico Highway 26 near an on-ramp to I-25 because, in his experience, alien and narcotics smugglers frequently take Highway 26 through Hatch to evade Border Patrol checkpoints located on nearby I-10 and I-25. Dooley was approximately 80 to 85 miles from the Mexican border.
At about dusk, an old gray van displaying a temporary Texas license plate approached Dooley's vehicle. As the van approached, the van's driver and a passenger noticed Dooley, who was sitting behind the wheel in full uniform. They immediately stiffened up and looked straight ahead. As the van continued past Dooley, he saw two other people in the back of the van moving around: one was sitting up, and the other, according to Dooley's testimony, was "diving down."
Dooley trailed the van onto I-25, activated his emergency lights, and pulled the van over. He suspected the van might be smuggling illegal aliens for several reasons: vans are often used for smuggling aliens because of their large size; the van had temporary Texas license plates suggesting it may have been recently purchased; and the van's presence on Highway 26 suggested that if the van had come from Texas, the driver took a well-known circuitous route frequently used by smugglers to avoid the Border Patrol checkpoints in southern New Mexico.1
Dooley approached the van and asked the driver and passenger to indicate their citizenship. The driver and passenger, later identified as Marisela Barrera and Sherell Cox, replied they were United States citizens. Dooley repeated the question to the two persons in the back of the van. Both women, Nina Cheromiah and a juvenile non-defendant, also stated they were United States citizens. Dooley proceeded to question the occupants. Barrera stated that she was coming from Deming, where they had just dropped someone off, and that she had recently purchased the van in El Paso, Texas. When asked whether all of her companions had initially traveled together to El Paso, she replied that they had taken a bus the day before from Denver, Colorado. This explanation aroused Dooley's suspicions because he could not understand why so many people would take a bus from Denver to El Paso only to purchase a van and then drop someone off in Deming one day later.
At the hearing on the motion to suppress, Dooley testified that he smelled the odor of dryer sheets emanating from the rear of the van while he was talking with Barrera. In his report, written just after the arrest, however, he wrote that he smelled dryer sheets only after he moved to the opposite side of the van and opened the sliding door to speak to the other occupants.2 Because in Dooley's experience drug smugglers often use dryer sheets to mask the smell of narcotics, he asked Barrera for permission to have his canine inspect the van. Barrerra consented to the inspection, and Dooley asked all of the occupants of the van to step outside. Dooley escorted his canine to the van, and the canine immediately alerted to a bag located in the rear of the van. On opening the bag, Dooley found a number of small bundles wrapped in cellophane and dryer sheets. He field tested a small quantity of the contents of one bundle and discovered that they contained marijuana. Dooley placed all occupants of the van under arrest. Fifteen minutes later, additional Border Patrol agents arrived to assist in transporting the occupants and the van to a nearby checkpoint. A search of the van revealed 107 bundles of marijuana, weighing just under 120 pounds.
A federal grand jury returned a two-count indictment against Cheromiah and two-co-defendants, Barrera and Cox. Count 1 charged Cheromiah and her co-defendants with conspiring to possess with the intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. Count 2 charged them with possessing with the intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
Cheromiah moved to suppress evidence obtained as a result of Dooley's stop of the van. After holding an evidentiary hearing, the district court denied the motion. Following an unsuccessful motion to reconsider the denial of her suppression motion, Cheromiah entered a conditional plea of guilty to the indictment, preserving her right to appeal the district court's denial of her motion to suppress. The district court sentenced Cheromiah to three years probation with the condition that she serve the first six months of her probation under home detention. Cheromiah appeals in accordance with her conditional guilty plea.
On appeal, Cheromiah argues that Dooley violated her Fourth Amendment rights by pulling the van over without having reasonable suspicion to believe that the van contained illegal aliens. She also argues that even if the initial stop was justified, reasonable suspicion that the van contained illegal aliens was dispelled when Dooley determined all the occupants were United States citizens. Given this suspicion, she argues, continued detention of the van was unreasonable and violated her Fourth Amendment rights.
Standards governing our review of a district court's ruling on a motion to suppress are well established. United States v. Cantu, 87 F.3d 1118, 1120 (10th Cir. 1996). We consider the evidence in the light most favorable to the prevailing party, here the government, and accept the district court's factual findings unless clearly erroneous. Id.; United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997). But, the "ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo." United States v. McKissick, 204 F.3d 1282, 1296 (10th Cir.2000). The defendant bears the burden of establishing that the challenged stop violated the Fourth Amendment. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999). Because we conclude Dooley's initial stop of the van and its continued detention was supported by reasonable suspicion, we affirm.
"This case returns the court to familiar geographic and legal territory; we have frequently been called upon to assess the legality of investigatory stops made by the Border Patrol near the New Mexico-Mexico border." United States v. Monsisvais, 907 F.2d 987, 989 (10th Cir.1990). Consistent with the Fourth Amendment's prohibition against unreasonable searches and seizures, Border Patrol agents on roving patrol are permitted "to stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the occupants are involved in criminal activity. Cantu, 87 F.3d at 1121 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Reasonable suspicion does "not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Rather, "reasonable suspicion represents a `minimum level of objective justification.'" United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)).
In determining whether there is reasonable suspicion to stop a car in the border area, officers may consider any number of factors, including:
(1) [the] characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver's behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded.
Monsisvais, 907 F.2d at 990 (citing Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574).
When evaluating an officer's decision to stop a vehicle, a court may not engage in a "sort of divide-and-conquer analysis" by evaluating and rejecting each factor in isolation. Arvizu, 534 U.S. at 267, 122 S.Ct. 744; United States...
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